This is to alert you to pending legislation that would dramatically
reduce public access to valuable Defense Department records now released
under the Freedom
of Information Act, including important historical records on military
and political developments abroad and important information about human
rights abuses. There have been no public hearings on the legislation, which
is based on inaccurate assumptions, as described below.

The Defense Authorization bill contains a provision that would
exempt all “operational files” of the Defense Intelligence Agency from
the Freedom of Information Act. (S. 2549, sec. 1045). At the
moment, while some information in those files is classified, many documents
are routinely released from such files, including from the Defense HUMINT
Service at the DIA, and this provision would make such information unavailable
in the future.

The bill proposes to extend the CIA Information Act of 1984, which
exempted the files of the CIA’s Directorate of Operations from the FOIA,
to files in the Defense Intelligence Agency. But none of the reasons
supporting the enactment of the CIA Act apply to the files of the Defense
Intelligence Agency. Unlike the CIA, the DIA does release many important
operational records, which are either unclassified to begin with or have
been declassified. In addition, the organization and functions of DIA are
so different from the CIA, that it is unreasonable to simply extend the
application of the CIA Information Act to the DIA.

The CIA Information Act exempts the files of the CIA Directorates
of Operations and of Science and Technology from the search and review
requirements of the Freedom of Information Act (sec. 701 of the National
Security Act of 1947, 50 U.S.C. 431). The rationale for the CIA exemption
was that no information was ever being released from these particular files
at the CIA, so that the resources being devoted to searching and reviewing
those particular files could be better spent on reviewing files from which
information would be released. (See Select Committee on Intelligence, Report
on Intelligence Information Act of 1983 S.Rep. No. 98-305 at 10.)
The CIA Information Act was passed after extensive public hearing and debate,
based on explicit representations by the agency that it would not result
in additional information being withheld from the public. An extensive
public record was made describing the specific files at the CIA exempted
by the Act and the kinds of documents found in those files. Indeed,
the CIA promised that by concentrating its FOIA and declassification resources
on files other than the Directorate of Operations files, more information
would actually end up being publicly released after passage of the Act.

But applying the CIA Information Act to the Defense Intelligence
Agency, as proposed in sec. 1045, would have the opposite effect.
It would result in a drastic reduction in the amount of information now
being made public. First, it is not even clear what files in what
divisions of the DIA would now be exempt from the FOIA. Instead of identifying
specific directorates or divisions of DIA that would be exempted, the bill
simply incorporates an extremely broad and vague definition of “operational
files.” That definition, while taken from the CIA Information Act,
applied only to files in specifically identified divisions of the CIA,
namely, the Directorates of Operations, and of Science and Technology and
specific files in the Office of Personnel Security. And the FOIA
exemption for those CIA files was based on a publicly documented
record concerning what kind of information was kept in those files and
how information was moved from those files to other files both inside and
outside the agency.

Here, no such public record has been made concerning which files
in which offices of the DIA would be exempt and no record has been made
concerning what kinds of information and documents are kept in the different
offices of the DIA. What is clear is that the organization of DIA
and its intelligence operations do not mirror those of the CIA in any way
which would make it reasonable to simply apply the CIA Information Act
to the DIA.

While neither the statutory nor report language addresses the
issue, we have heard the FOIA exemption is intended for the files of the
Defense HUMINT Service at the DIA. But there are fundamental differences
between the intelligence operations of the CIA’s Directorate of Operations
and the DIA’s Defense Humint Service, which make giving the DIA a special
FOIA exemption unreasonable. The DIA includes the openly acknowledged
defense attaches stationed in U.S. embassies around the world. Like
Foreign Service officers at the embassies, the military attaches operate
openly and collect and report foreign intelligence information. They
do not operate undercover like overseas CIA employees. The
Defense Humint Service also includes the humint divisions of the various
armed services and unlike the Directorate of Operations at the CIA, collects
information, as much or more through open sources, than through the kind
of clandestine intelligence sources, which must be so closely guarded at
the CIA. Thus, to provide a wholesale exemption from the FOIA
for the operational files at the Defense Intelligence Agency would be the
equivalent of exempting all the information gathered by the State Department’s
Foreign Service and a radical weakening of the FOIA.

Indeed over the years, the DIA has routinely declassified and
released hundreds of documents including intelligence reports, which have
been important to public debate and the historical record. (Of course,
sensitive information that must be protected for national security reasons
is already exempt from the disclosure requirements of the FOIA.)
The humint services of the armed services have also released substantial
amounts of information. Such information includes for example:

important information about a retired Guatemalan military officer arrested
in January, 2000 for the 1998 assassination of Bishop Juan José
Gerardi in Guatemala. Nine declassified documents from the DIA spanning
1965-1988 concerning the officer may be viewed on the Web at: <https://nsarchive2.gwu.edu/NSAEBB/NSAEBB25/index.htm>;

a 1992 unclassified intelligence report concerning statistical data on
political violence in Peru;

a 1985 DIA Appraisal on China titled "Military Reform Campaign," released
almost in its entirety; and

a 1978 declassified Weekly Intelligence Summary on events in Rhodesia.

(Copies of these documents may be obtained from the authors of this
memo.)
Section 1045 would, without any rationale or even any public justification,
simply rewrite the Freedom of Information Act to exempt such information.
It should be rejected.